Peeping toms with cell phones: Video voyeurism not illegal in Alabama, but for how much longer?

Updated January 28, 2018 at 8:09 AM;Posted January 28, 2018 at 7:09 AM

A cell phone can be used to take pictures underneath women's skirts, a practice that has a slang, "upskirting." An Alabama lawmakers wants to have it criminalized under a new law prohibiting video voyeurism. (AP photo)

Lady Godiva rode naked in her town to protest harsh taxes, so the Old English legend goes. A fellow named Tom stole a peek.

If he'd had a cell phone, Tom might have snapped surreptitious photos, too, sending them all over.

The techno age is giving Peeping Toms tools that were unimaginable just a decade ago. And states like Alabama are racing to update and amplify laws to clamp down on voyeurism.

"It's not acceptable behavior," said state Sen. Clyde Chambliss, R-Montgomery, who is pushing a bill, SB57, in the 2018 Legislature that would criminalize "video voyeurism" - the act of recording or attempting to record a visual image of another person's intimate body parts without his or her consent.

The bill is expected to be heard before the Senate Judiciary Committee in the coming week.

SB57 also goes a step further by making videotaping and photography off limits in places where privacy should be reasonably expected. That's an important element, according to Chambliss.

In Prattville last year, a man was charged with attempted criminal surveillance after he was caught taking stealthy pictures under the shirts of women shopping in Walmart and Lowe's stores.

That 2012 law prohibits spying on someone else in a obviously private place such as a restroom stall. Since the aisles of Walmart and Lowe's weren't considered private, the Prattville case was dismissed.

"He was approaching females wearing skirts or dresses, slid his cell phone underneath them and took their pictures," said Brad Ekdahl, the city prosecutor in the case. "They were alerted by other females inside the store."

Ekdahl continued, "The problem was there isn't a law to address this. Criminal surveillance requires someone to trespass in a private place. If you walk into a store, you are not walking into a private place."

Chambliss said the existing law isn't stout enough to deal with the new wave of voyeurism. "It's certainly not clear and concise," he said. For example, Chambliss said that "surveillance" should be more directly defined to prohibit attempts to make camera shots up a woman's skirt, a crude type of voyeurism that even has its own slang name: "upskirting."

'Daily fears'

In 2004, Congress passed a law making it a crime to photograph naked or partially clad people on federal property.

State laws have varied, however. Voyeurism is considered a misdemeanor in California, while in Florida, Louisiana, and a handful of other states it can be a felony.

Under Chambliss' SB57, voyeurism would be a felony in Alabama if the intent is sexual gratification. It would be a misdemeanor if the intent is to distribute or disseminate a photograph, without proof of sexual gratification.

Nearby states have addressed the matter in recent years, often under pressure from women who've been victimized, and their families and communities. Chambliss said his bill, too, is "constituent-driven."

In 2015, Mississippi made voyeurism a felony after a University of Southern Mississippi student contacted a state senator with her story and with complaints about loopholes in that state's law.

Georgia enacted its law last year to prevent upskirting after its courts ruled in 2016 that the state didn't have laws on the books preventing the pictures. Attending the formal signing of Georgia's law was Councilwoman Debbie Johnson from the Savannah, Georgia, suburb of Port Wentworth. She claimed she was victimized by a former councilman who used his cell phone to take an illicit picture of her and then shared it with the city's former mayor.

"Upskirting is just one of the daily fears many women have whenever they leave their homes so it's great that laws that enable this disgusting and invasive practice are being questioned," said Carrie Goldberg, a New York lawyer who has gained notoriety for work to help victims seek justice and is a leading expert on combating so-called "revenge porn."

"Frankly, it's baffling that you can surreptitiously take pics of someone's private parts simply because they're in public," she said.

Susan Gallagher, associate professor in the political science department at the University of Massachusetts Lowell whose specialty is gender, privacy and politics, said that passing "explicit laws" against upskirting may end up increasing the thrill for some perpetrators. Still, she said, the laws are "a useful way to express society's condemnation of the behavior."

"And without holding victims responsible for policing crime, it might also be helpful if victims or witnesses could publicly shame perpetrators by catching them in the act, taking their own pictures, and posting them online," Gallagher said.

For Gallagher, it's surprising that voyeurism even happens at all.

"I think that the attraction for people who do it is that it is such an odd perversion," she said. "Upskirters are apparently driven not to harass or bother women, but to create records of surreptitious violations of women's bodily privacy in public places. The thrill seems to lie in not getting caught, and in sharing photos online with other upskirters."

'Slippery slope'

N.G. Berrill, director of The New York Center of Nueropsychology & Forensic Behavioral Science, counsels hundreds of sex offenders every year, and is media source on providing insights about sexual disorders.

"It's a slippery slope," he said of the new voyeurism laws. "When I stare at a pretty girl and think she's attractive, am I a voyeur? What if I take a picture of her walking down the street? Is that a sex crime? I think there needs to be some perspective taken before you start to enact laws that run the risk of jamming the courts with allegations that become he said/she said."

Berrill said there are two types of video voyeurs that he meets in counseling: Men who are not shy, are able to date, but who get a "kick out of the passive invasion of someone's privacy." The other, he said, are socially inept men who take inappropriate cell phone pictures to "achieve some kind of intimacy."

"It's that mixture of technology that is available and the deficiencies in their personality and character," said Berrill. "They are also particularly turned on by body parts. It's almost like a game. There is almost an excitement to it."

Berrill said, "The idea is not to get detected. It's kind of an odd sex offense. It's usually a misdemeanor because people do not make physical contact."

He said that perpetrators can rehabilitate, and often are sentenced by judges to treatment.

Voyeurism is classified as a paraphilic disorder if the person has recurring instances of intense sexual arousal for engaging in the behavior for at least six months. Other paraphilic disorders include pedophilia, exhibitionism and sexual masochism.

But not everyone who has voyeuristic tendencies suffers from the disorder. A diagnosis is made if the behavior causes distress or hindrance to someone's job or normal social functions.

Berrill said he can understand why state lawmakers are going after voyeurs. But he advocates for treatment, not jail time.

"There are certain crimes that feel good to legislate and prosecute, and sex crimes are good crimes to go after," he said. "No one wants their girlfriend or wife surreptitiously photographed. But in some locales, where they have more serious issues to deal with, this probably is not put on the front burner."

In Prattville, Ekdahl - the city prosecutor - said video voyeurism is a "rare occurrence" but fits into a series of "weird" deviant crimes that law-enforcement agencies encounter.

"What human being wakes up on a Tuesday morning and says, 'I'd like to meet some ladies and I think the best idea is to hurl semen at them?'" said Ekdahl. "It's so odd. But what was frustrating is that there was no law to deal with that. What we had to do was cobble together some statutes to make it fit."

He's said that he's glad to see Chambliss' bill. "We have an interest in protecting the community," Ekdahl said. "We have a thriving retail district in Prattville. We don't want to see that hurt, either. We want people to think they are safe without having this happen to them."